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GST - Case Laws
Showing 121 to 140 of 161 Records
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2023 (3) TMI 426 - MADRAS HIGH COURT
Validity of demand notice with assessment order - Violation of principles of natural justice (audi alterem partem) - opportunity of personal hearing not provided - Benefit of concessional rate of composite supply of works contract - N/N. 11 of 2017 dated 28.06.2017 - HELD THAT:- The personal hearing has, admittedly, not been fixed by date or time and this is a gross flaw in this order, which this Court is tired of pointing out. The petitioner has also in compliance with the notice, filed a submission on 29.11.2022, though without any supporting documents.
The sum and substance of Section 75(4) is that a personal hearing shall be granted in all matters prior to finalisation of assessment except where the stand of the assessee is intended to be accepted by the Department. Thus, on this score, the officer has grossly erred in proceeding to finalise the impugned assessment in violation of the principles of natural justice.
The impugned orders are set aside and these Writ Petitions are allowed.
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2023 (3) TMI 425 - BOMBAY HIGH COURT
Seeking to restrain the Respondents themselves, their officers, subordinates, servants and agents from taking any steps pursuant to the impugned Summary Order - order and the show cause notice are issued without giving an opportunity and without accompanying reasoned adjudication order i.e. only summary - principles of natural justice (audi alterem partem) - violation of statutory provisions u/s 73 of the Maharashtra Goods and Services Tax Act, 2017 and Rule 142 of the MGST Rules.
HELD THAT:- Despite direction that the reply affidavit should only deal with the aspects of unreasoned order, still 20 pages reply has been filed various contentions taking. In the reply affidavit, in para 5 (iv), it is accepted that only summary of the order is issued without mentioning the reasons for dis-allowance. It is stated that hearing was given and reasonable opportunity was granted. However, it is clear the officer has not passed a detailed order, and hence, the grievance of the Petitioner that without detailed order remedy of appeal is illusory, will have to be accepted.
There was particular reason why it was directed that reply affidavit be filed on the limited ground of breach of principles of natural justice, because if proceedings have to be remanded, then upon remand, the authority can apply his mind after giving an opportunity. Therefore, the contentions raised in the reply affidavit, which seek to comment on the merits of the claim, shall be treated as prima facie.
The Writ Petition is disposed of setting aside the impugned order.
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2023 (3) TMI 424 - APPELLATE AUTHORITY FOR ADVANCE RULING, PUNJAB
Classification of goods - Scope of advance ruling issued in the another cases - right in rem or right in personam - roof mounted Air conditioning unit especially for use in railway coaches (manufactured as per railway design) - classifiable under HSN- 8415 1090- IGST 28% or under HSN 8607 99 - IGST 18% as parts of Railway Coaches/ Locomotives? - HELD THAT:- The parts or accessory which are not suitable for use solely or principally with the articles of Chapter 86 to 88 are not to be included in the said chapter. On the obverse, parts or accessory which are suitable for use solely or principally with the articles of Chapter 86 to 88 are to be included in the said chapter. But the said section note has to be read in conjunction with the Section Note 2 of the said section. The harmonious construction of the said section notes brings out the fact that section note 2 excludes certain goods from the domain of the expression, “parts” or “parts and accessories”. As for the remaining good that is not excluded by virtue of the said section note the same can be classified as “part” or “accessory” only if it is suitable for use solely or principally with the goods of the said Section.
The appellant has cited certain judgments in his submissions. Some of them are Westinghouse Saxby Farmer Ltd vs. Commissioner of Central Excise Kolkata [2021 (3) TMI 291 - SUPREME COURT], G.S. Auto International Ltd. Vs Collector of Central Excise, Chandigarh [2003 (1) TMI 700 - SUPREME COURT], Diesel Component Works Vs. Commissioner of Central Excise [2000 (6) TMI 68 - CEGAT, COURT NO. I, NEW DELHI].
The discussions in these judgments as well as the factual matrix detailed therein, it is clear that the specific exclusion provided to HSN 84.01 to 84.79 do not apply in above judgments. Accordingly, the judgment cited by the appellant varies from the instant appeal both on law and facts. The judgments mentioned above relates to the Chapter 73 and 76 of the erstwhile Central Excise Tariff Act, 1985 and not applicable in the instant case.
The appellant has conveniently overlooked the basic nature of the ruling given by the Authority for Advance Ruling. The said rulings are in the nature of “in personam” and not “in rem” and therefore their applicability as well as their protection cannot be sought by the others who were not party to the said proceedings.
Thus, the subject goods i.e. Roof Mounted Air-Conditioning unit manufactured by the appellant are classifiable under HSN Heading 8415.
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2023 (3) TMI 423 - AUTHORITY FOR ADVANCE RULING, PUNJAB
Classification of supply - supply of goods or supply of services - activity of building and fabricating of Tipper Body and mounting the same by the applicant on the chassis owned and supplied by the customer - applicable rate of GST - HELD THAT:- Circular no. 52/26/18-GST dated 9th August, 2018 provides a clarification regarding applicability of GST on various goods and services which includes Bus Body Building as the supply of motor vehicle or job work - the contents of the circular issued by the Board are self-explanatory in nature. The advance ruling sought by the party gets squarely covered under Para 12.2 and 12.3 of the said circular.
If the activity of fabrication and mounting of body is done on the chassis owned by applicant and using his own inputs & capital goods, the same shall amount to supply of goods and shall merit classification under HSN 8707, attracting 28% of GST.
On the contrary if the activity of fabrication and mounting of body is done on the chassis supplied by the customer using their own inputs & capital goods amounts to supply of service, in terms of CBIC Circular dated 09.08.2018 and merits classification under SAC 9988, attracting 18% of GST.
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2023 (3) TMI 375 - SC ORDER
Seizure of goods alongwith vehicle - HELD THAT:- The matter requires consideration and the proposition of law has been laid down in decision rendered by the High Court of Kerala at Ernakulam in Hindustan Steel and Cement and Ors. v. Assistant State Tax Officer, 24X7 Mobile Squad @ Vatakara, State Goods and Services Tax Department and Ors. [2022 (8) TMI 393 - KERALA HIGH COURT].
Issue notice.
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2023 (3) TMI 374 - CALCUTTA HIGH COURT
Violation of principles of natural justice (audi alterem partem) - petitioner submits that the order was passed without giving any reasonable opportunity of hearing to the petitioner - HELD THAT:- It does not appear that there was any bona fide intention on the part of the petitioner to produce the documents as sought for. The petitioner went on buying time by submitting repeated requests for adjournment. The Order-in-Original was passed on September 14, 2021. Even thereafter the petitioner chose not to file the appeal within the prescribed period.
The Corona Pandemic substantially ebbed in the year 2021 and as opportunity was given for virtual hearing, the petitioner ought to have availed the same. The conduct of the petitioner does not appear to be a bona fide one. At such a belated point of time, the Court is of the opinion that, the matter is not required to be remanded back to the authority for reconsideration.
The writ petition fails and is hereby dismissed.
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2023 (3) TMI 373 - DELHI HIGH COURT
Cancellation of GST registration of petitioner - failure to file returns for a continuous period of six months - HELD THAT:- A plain reading of the impugned order indicates that the petitioner’s appeal was dismissed as the Appellate Authority found that the petitioner had not shown sufficient cause for allowing revocation of cancellation of his registration. The Appellate Authority also observed that the petitioner had not filed an affidavit as required by the e-mail dated 06.05.2022 - There is no dispute that the petitioner is the sole proprietor of the concern, T S Events and Management. There is also no reason to doubt the petitioner’s claim that he was suffering from ill-health during the period of pandemic and, therefore, was unable to respond to the Show Cause Notice or appear personally before the concerned Officer.
In so far as the non-filing of the affidavit is concerned, the petitioner states that he has fully discharged its tax liability and no amount is outstanding. In fact, it is his claim that his business had come to a standstill - The fact that the respondents have also not found that any amount is due from the petitioner, is evident from the cancellation order dated 18.01.2021, which reflects that the amount recoverable from the petitioner is nil.
This Court is of the view that the petitioner had shown sufficient grounds for revocation of his cancellation - The impugned order dated 18.01.2021, cancelling the petitioner’s registration and the order dated 31.10.2022, rejecting his appeal, are set aside - Petition allowed.
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2023 (3) TMI 372 - MADRAS HIGH COURT
Attachment of Bank Account of petitioner - petitioner has challenged the impugned attachment notice on the ground that the petitioner was not informed in the show cause notice dated 20.01.2022 for levying GST - alleged output tax mismatch between GSTR-3B and GSTR-1 and tax mismatch between GSTR-7 and GSTR-1 - HELD THAT:- As seen from the written instructions, it is clear that only the summary of the impugned order was sent to the petitioner and no speaking order has been passed by the respondent. Since a speaking order has not been passed by the respondent with regard to the petitioner's contentions, necessarily the impugned order has to be quashed and the matter has to be remanded back to the respondent for fresh consideration on merits and in accordance with law after affording a fair hearing to the petitioner including granting them the right of personal hearing.
The impugned assessment order dated 31.03.2022 and the consequential recovery notice dated 19.10.2022 are hereby quashed and the matters are remanded back to the respondent for fresh consideration on merits and in accordance with law.
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2023 (3) TMI 371 - DELHI HIGH COURT
Profiteering - petitioner owns / runs multiplexes in various locations in India and the GST rates applicable to movie tickets had been reduced with effect from 01st January, 2019 - allegation is that benefit of input tax credit not passed on by way of commensurate reduction in the price - violation of principles of natural justice - HELD THAT:- Keeping in view the orders passed by this Court in PHILLIPS INDIA LIMITED VERSUS UNION OF INDIA & ORS. [2020 (6) TMI 626 - DELHI HIGH COURT] as well as M/S. SAMSONITE SOUTH ASIA PVT. LTD. VERSUS UNION OF INDIA & ORS. [2020 (10) TMI 1031 - DELHI HIGH COURT] and M/S. PATANJALI AYURVED LTD. VERSUS UNION OF INDIA & ORS. [2020 (7) TMI 614 - DELHI HIGH COURT], this Court directs the petitioner to deposit the principal profiteered amount i.e. Rs.2,66,99,340/- in six equated instalments commencing 1st December, 2022.
The interest amount directed to be paid by the respondents as well as the penalty proceedings and further investigation by NAA in respect of cinema halls of petitioner for extended period of time as provided for in the impugned order are stayed till further orders.
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2023 (3) TMI 328 - DELHI HIGH COURT
Cancellation of GST registration of petitioner - According to the petitioner, it had, by an inadvertent error, entered 01.02.2018 as the date from which cancellation of registration was sought, instead of 01.02.2019 - HELD THAT:- The petitioner has explained that the allegation that M/s Om Enterprises is non-existent is erroneous. There is an apparent error in this regard as well because the correct GSTN number of M/s Om Enterprises is 07AABFO2970Q1ZR and not 07AABFO3970Q1ZR. Mr Kumar, learned counsel for the petitioner, also drew our attention to a print out from the website of the GST department, which reflects the status of M/s Om Enterprises as active.
Prima facie, there are no merit in the contention of the respondent that there are any grounds to doubt the petitioner’s statement that its request for cancellation of GST Registration with effect from 01.02.2018 was an apparent error. It is apparent that the petitioner had meant to seek cancellation of the registration with effect from 01.02.2019 and had filed returns till January 2019.
The respondents are directed to consider the petitioner’s application dated 11.02.2019 afresh by considering the date from which the registration was requested to be cancelled as 01.02.2019 instead of 01.02.2018 - petition allowed.
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2023 (3) TMI 327 - DELHI HIGH COURT
Withholding of Refund claim - department to go in appeal against the order in favor of assessee - It is the petitioner’s case that on account of an inverted duty structure, he could not fully utilise his input tax credit - HELD THAT:- Admittedly, the appeals have not been filed by the respondents as yet. The time for preferring the appeal has also expired. However, the learned counsel for the respondent submits that the appeals would still be in time as in terms of the circular dated 03.12.2019, the time for the Department to prefer an appeal has been extended till three months after the date on which the Tribunal is constituted.
It is not necessary for this Court to examine the question whether appeals if and when preferred would be within time. Suffice it to state that the respondent has not secured any order which would, in any manner, stay the operation of the appellate orders passed by the Appellate Authority - Clearly, it is not open for the respondents to ignore the orders passed by the Appellate Authority merely on the ground that it has decided to appeal those orders. It would be debilitating to the rule of law, if the respondents are permitted to withhold implementation of the orders passed by the authority in this manner.
Petition allowed.
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2023 (3) TMI 326 - MADRAS HIGH COURT
Constitutional validity of Section 140(3)(iv) of the Central Goods and Services Tax Act, 2017 - non application of mind - petitioner had submitted a declaration in its return that there is Nil inventory but the respondents have not given due consideration to the said fact and has passed the impugned order-in-original - HELD THAT:- Admittedly, there is a statutory appellate remedy available to the petitioner as per Section 107 of the Goods and Services Tax Act as against the impugned order in original dated 21.12.2022. The principles of natural justice has not been violated by the respondents as seen from the impugned order in original dated 21.12.2022. The respondents may have committed an error in coming to the conclusion in the impugned order-in-original. The contentions raised by the petitioner in this writ petition will not amount to violation of principles of natural justice.
Since the petitioner has approached this Court under Article 226 of the Constitution of India by filing this writ petition without exercising the statutory appellate remedy available to them under Section 107 of the Goods and Services Tax Act, the present writ petition is not maintainable.
This writ petition is disposed of by directing the petitioner to approach the statutory appellate authority if aggrieved by the impugned order-in-original dated 21.12.2022 passed by the second respondent.
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2023 (3) TMI 325 - BOMBAY HIGH COURT
Refund of GST - Rejection primarily on the ground that the refund claim is beyond the period of two years as prescribed under section 54 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- The impugned order is set aside and matter of refund claim of the Petitioner restored to file of the Assistant Commissioner, who will examine the case of the Petitioner on the basis of the order passed by the Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020 and the subsequent orders passed in Suo Motu Petition. The Assistant Commissioner will consider the case of the Petitioner afresh, both on the ground of limitation and on merit. The requisite decision be taken within the period of six weeks from today.
The writ petition is disposed off.
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2023 (3) TMI 290 - CALCUTTA HIGH COURT
Misuse of E-way Bill - said goods being transported by a different conveyance - Levy of penalty under Section 129(3) of the West Bengal Goods and Services Tax Act, 2017 - failure to produce any document in support of the goods being transported by a different conveyance - HELD THAT:- It appears that the adjudicating authority and the appellate authority applied their mind and on being satisfied that the goods were found to be transported without any e-way bill imposed penalty. The petitioner ought to appreciate that when an e-way bill is generated then the details of the goods to be transported, the place from where the shipment is made and the final destination are mentioned therein along with the details of the transporter and the vehicle number.
Apart from the taxing purpose, the e-way bill is generated to identify the goods that are being transported, the place from where it is being transported, the final destination and the vehicle number by which the goods will be transported. The same implies that the goods cannot and ought not to be transferred from one vehicle to the other, far less, transported via a different vehicle, without obtaining a proper e-way bill.
The moment the goods are unloaded from the vehicle in respect of which e-way bill was generated and loaded in a different vehicle without any e-way bill a statutory breach is committed, liable to be dealt with in accordance with the statute - There may be instances where, for illegal purpose, the goods are off loaded in the midway and taken to a different destination other than the one mentioned in the e-way bill. It is not for the authority to ascertain the reason as to why such action has been undertaken. There is no requirement in law to verify the reason for transporting goods in a vehicle without a proper e-way bill.
In GULJAG INDUSTRIES VERSUS COMMERCIAL TAXES OFFICER [2007 (8) TMI 344 - SUPREME COURT] the Court held that breach of statutory provision would attract levy of penalty and the officer does not have any authority to either reduce or waive the penalty.
Petition dismissed.
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2023 (3) TMI 289 - CALCUTTA HIGH COURT
Levy of penalty upon the petitioner for transporting goods against an expired e-way bill - petitioner contends that he ought not to be imposed the penalty amount as the petitioner was in no way responsible for the delay in issuing the gate pass at Cooch Behar - HELD THAT:- There may or may not be valid reasons for not being able to transport the goods within the validity period of the e-way bill. The petitioner may not have any intention to evade tax; but can that be a valid ground to transport goods without a valid e-way bill.
The Act is very clear on the issue. Law bars transportation of certain goods beyond a particular distance without a valid e-way bill. The petitioner being aware of the legal requirement generated the e-way bill prior to transportation of the goods. Due to some unknown reason there was delay in issuing gate pass at the check post for which the transportation got delayed resulting in non-delivery of goods within the stipulated time period. Law prescribes generation of fresh e-way bill for transportation of goods if the same cannot be delivered on time - It is the duty of the owner/transporter/consignor/consignee to keep track of the consignment and do the needful for transporting the goods in accordance with law. The interception and detention of goods without valid documents are permissible in law. The authority intercepting the vehicle in the course of movement is not supposed to appreciate the reasons as to why the vehicle was moving without a valid e-way bill.
Transportation of goods with a proper e-way bill is one of the salient features of the Act. There is no scope to dilute the said provision of law for granting relief to an errant transporter. The Act cannot and ought not to be interpreted in such a manner that the very essence of the same is lost. Section 129 of the Act opens with a non obstante clause which lends a mandatory character to the same. The petitioner may or may not be directly responsible for the delay in issuance of the gate pass, but he is certainly at fault in transporting goods without a valid e-way bill.
Petition dismissed.
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2023 (3) TMI 288 - DELHI HIGH COURT
Cancellation of GST registration of petitioner - It is the petitioner’s case that he had been carrying on the business and had been filing his due returns from the date of the registration, however, had not filed the returns for certain period as its turnover for the said period was nil - petitioner failed to respond to the Show Cause Notice - HELD THAT:- In a number of such case, this Court has held that the registration be restored to permit the taxpayer to file the returns while reserving the right of the respondents to cancel the registration if the petitioner does not cure the cause within a specified period.
It is the petitioner’s case that it had been unable to respond to the Show Cause Notice as he had been unwell. It is also noticed that the during the material time, the pandemic was raging and a number of persons were facing such difficulty.
The respondents are directed to restore the registration to enable the petitioner to file all returns and pay taxes, interest and penalties, if any, in accordance with law - petition disposed off.
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2023 (3) TMI 287 - GUJARAT HIGH COURT
Refund of GST u/s 54 of the Central Goods and Services Tax Act, 2017 and the Central Goods and Service Tax, Rules, 2017 - passed passed on the grounds, never mentioned in the show cause notice - rejection mainly on the ground that order has been passed in violation of principle of natural justice and being a non-speaking and cryptic order - HELD THAT:- The order has been passed on those grounds which were never mentioned in the show cause notice. Even the petitioner was not granted an opportunity to meet with the grounds, upon which, the impugned order has been passed.
The petition requires consideration - the impugned order dated 13.7.2021 passed by the respondent no.3- Deputy Commissioner of Sales Tax is hereby quashed and set aside. The respondent authority is directed to decide the case afresh after giving an opportunity of hearing to the petitioner and in accordance with law - petition allowed by way of remand.
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2023 (3) TMI 272 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of regular bail - cheating and fabrication of bills and documents - earlier bail application dismissed - HELD THAT:- The argument raised by learned senior counsel for the petitioner that no separate FIR could be filed and only a complaint under the GST Act could have been filed would not be sustainable since offences under the GST Act and that of the provisions of the IPC as are in the present case are separate and distinct. Even maximum punishment under Section 467 IPC is upto life imprisonment. The allegations against the petitioner were with regard to getting benefit of about Rs.2,68,74,696/- as wrongfully by way of Input Tax Credit and as per the allegations there was no physical movement of any goods and it was all a paper transactions and even as per learned counsels for the parties, the FIR was initially lodged under Sections 420, 467, 468 and 471 IPC and thereafter Section 132 of the Goods & Service Tax Act, 2017 was added.
The earlier bail petition was dismissed as withdrawn by the petitioner on 24.08.2022 and the present petition has been filed on 29.11.2022 and till date there is no change of circumstance. This Court is of the view that considering the gravity and the magnitude of the allegations involved in the present case and also the apprehension expressed by learned State counsel that in case the petitioner is released on bail, then he may threaten the witnesses, this Court does not deem it fit and proper to grant bail to the petitioner.
Consequently, finding no merit in the present petition, the same is hereby dismissed.
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2023 (3) TMI 271 - SIKKIM HIGH COURT
Application for rectification of mistake - section 174(2) of the CGST Act, 2017 - HELD THAT:- A perusal of the impugned communication dated 23.01.2018 reflects that it was the Joint Commissioner who had communicated to the petitioner stating that the Commissioner of CGST Siliguri Commissionerate was of the opinion that the points raised in the application were not covered under section 74 Act and that the application for rectification of mistakes stood disposed of. Quite evidently there is no written order of the learned Commissioner CGST disposing the application for rectification of mistake as required under section 74 Act.
In view of the submissions made by the learned counsel for the parties the impugned communication dated 23.01.2018 passed by the Joint Commissioner is set aside and the learned Commissioner, CGST, Siliguri Commissionerate is directed to take on board the application for rectification of mistake filed by the petitioner, consider the same and dispose it by a written order - Application disposed off.
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2023 (3) TMI 270 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of Regular Bail - availment of fraudulent input tax credit - HELD THAT:- Reliance placed in the case of Sanjay Chandra v. CBI [[2011 (11) TMI 537 - SUPREME COURT]], wherein it was held that we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.
Keeping in view the facts of present case and the judgment in the case of Sanjay Chandra and in particular that the petitioner is in custody since 07.05.2022; challan was presented on 06.07.2022, however, charges are yet to be framed; in all there are 20 witnesses; the trial is likely to take a considerable time, his further detention behind bars would not serve any useful purpose, thus the present petition for grant of regular bail deserves to be allowed.
The petitioner is ordered to be released on regular bail, subject to his furnishing bail/surety bonds to the satisfaction of trial Court/Duty Magistrate concerned and subject to him not being required in any other case, and subject to the conditions imposed - petition allowed.
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